Just Action

A CONVERSATION WITH RICHARD AND LEAH ROTHSTEIN

Text by Anastasia Calhoun, Assoc. AIA, NOMA
Photo Essay by Adam Paul Susaneck

In his 2017 book “The Color of Law,” Richard Rothstein chronicled the history of the modern American city and, in the process, destroyed the myth of de facto segregation in the United States. His unrefuted argument that the separation of black and white Americans began through explicit laws and policy has since become conventional wisdom. Following this, Rothstein recruited his daughter Leah Rothstein, a housing policy expert and community organizer, to outline an action plan for undoing the damages of segregation. The result is their new book, “Just Action: How to Challenge Segregation Enacted Under the Color of Law,” which was published in June of this year. TA Editor Anastasia Calhoun, Assoc. AIA, NOMA, spoke with the Rothsteins about this endeavor and the steps we can all take to begin to redress segregation. 

The accompanying photo essay is from the project, “Segregation by Design.” Founded by architect Adam Paul Susaneck, the project seeks to create an “Atlas of Urban Segregation,” documenting the means by which the federal, state, and local governments have used housing and transportation policy to intentionally divide American cities along lines of race and class.

The following transcript has been edited for clarity and length.

Anastasia Calhoun, Assoc. AIA, NOMA: I want to first talk about the genesis of your recent book “Just Action.” Richard, you’re the author of “The Color of Law.” Leah, you work as a housing policy expert. How did your two paths come together?

Richard Rothstein: “The Color of Law” was a book of history. It explained how segregation was created by explicit government policy. It demolished the myth of de facto segregation as something that just happened by accident. Many people who read it and attended my lectures on it then asked, “Well, what can we do about it now?” I puzzled about this for a while and decided that I had to write a sequel that answered that question. My view was that there is no political appetite in this country at this point for national policy to redress segregation.

But while the federal government was the primary creator of residential segregation, it is local policy and practices and programs that sustain and reinforce it as much as national policy. I felt that I needed to write a new book, but I wanted to focus on what people can do in their own communities to make real victories in demolishing segregation and creating racial equality. I also knew that I wasn’t qualified to write a book like that by myself, so I had to recruit a co-author. I picked the best one I could find and pestered my daughter to work with me in writing it. She agreed, and together we published a book, “Just Action,” for people who really want to do something about segregation rather than just learn about how it happened.

AC: Leah, were you already familiar with the ideas covered in “The Color of Law” because of the work you do? Or were these ideas new to you too?

Leah Rothstein: The general idea that de facto segregation is a myth was not new. I understood from the work that I do that the systems and government policy that have been created and sustained have segregated communities, but the depth of information and evidence in “The Color of Law” was overwhelming and eye-opening. I was one of the people who went to one of my dad’s lectures and heard the call to action in “The Color of Law” that we have an obligation to do something to remedy the segregation that our government intentionally created. I asked him, “Well, it’s great that we’re now reckoning with this history, but what can we do to remedy it?” And he said, “Well, help me answer that question.” 

AC: One of the things that struck me was the structure of the book. It opens with efforts we can take at a grassroots level in terms of community organizing and setting up interracial committees. The next chapter is on the Supreme Court, and then you cover everything in between. How did you approach your research for this in terms of finding actionable steps? 

LR: Most of the strategies and policies that we describe are not new. There are people working on these issues, people who focus their entire professional careers on just one of these policies. We understood the landscape of these various ideas and started compiling them. We really wanted to make this an accessible source for people, for regular residents of communities who want to learn enough about these policy issues to be able to advocate for change. For every strategy that a community group could take on, we tried to give an example of a group somewhere in the country working on or successfully implementing it. I think it’s important for readers to see that this isn’t impossible and that it’s not necessarily new

RR: There are so many policies and practices and programs that people can initiate in their own communities. We wanted to show people how many different things they could choose from. One of the things we say in the book is, we don’t care where you start, just start somewhere. If local groups are interested in one of the things that we’ve talked about, they can then investigate it and get more detailed information that we don’t provide in the book. We were trying to give people a taste of practical things that they could do, but not prescribe which ones they should do first. 

LR: We want the roadmap, but there isn’t a consistent, clear path for every community. All of these strategies will have an impact. If you live in a suburban community that’s zoned only for single-family homes, that may be where you start. Or maybe you start with more incremental changes, like reducing parking requirements for new developments, which would allow for more lower cost housing development in that jurisdiction. Or you could start with opening your community to be more accessible to those using Housing Choice (Section 8) Vouchers. There are so many different strategies, and the one that makes the most sense depends on the characteristics, the political climate, and the history of that community. They’ll all be necessary eventually, so we just have to start somewhere.

AC: You make some strong statements in the book about the need for single-family zoning reform. Can you expand on those?

RR: One of the things that we emphasize in the book is that zoning reform — up-zoning — is an important first step, but it does not necessarily lead to redressing segregation. There’s such an enormous housing crisis in this country for middle-class families of both races that if you simply up-zone without the intentionality of creating opportunities for African Americans to have access to the new units that are being created, you won’t redress segregation.

Communities in Massachusetts have passed a law requiring up-zoning in areas near transit stops in every community in the Boston metropolitan area. The mostly white suburban communities are saying, yes, this is a great thing to do because now our kids can afford to move back to the communities that they grew up in, and families who live here can downsize when they get older. If that’s the result of all this, certainly there will be progress, but it’s not the kind of progress we’re talking about. If you want to redress segregation, up-zoning alone is not going to do it, but it’s a necessary first step.

AC: Can you talk about the importance of interracial relationship building in furthering efforts to redress segregation?

LR: We write about the need to create biracial relationships as a way to build committees that can enact these sorts of changes in their own communities. That is difficult because most of us live in segregated areas, so we don’t naturally come into contact with people of other races or naturally have social contact in that way. It does take some extra effort to intentionally bring people of different races together. We give some examples in the book of communities that have done that, and we have a Substack column where we’re continuing to write about other examples, as well as new issues that we didn’t cover in “Just Action.” 

RR: One reason why it’s so important to have biracial, multiethnic committees is that redressing segregation requires two different types of policies and programs. One is actions that improve conditions for people who are stuck in lower-resourced, segregated neighborhoods, particularly in this country, for African Americans. We describe a lot of things that have to be done, like protections for renters and inclusionary zoning. But in most cities, African Americans don’t have the political power to be able to enact those protections in their own low-resourced communities alone. They need white support, and one of the problems with much of the activism today is it doesn’t have that kind of biracial metropolitan-wide focus. Therefore, many of the groups that are advocating renter protections and inclusionary zoning and programs that would increase the quality of life in lower-income black communities are not successful because they don’t have the political power on their own. But then we insist that the other aspect of redressing segregation is opening up exclusive white communities to diverse residents, and that gets to the discussion we were having before about up-zoning. Both have to be done, but you can’t do them both without a biracial activist group.

AC: What are some of the challenges associated with creating these biracial committees? 

LR: I think the main challenge is that many of us don’t have social contact with people of other races outside of the workplace so that these groups don’t just naturally form. It takes intentional effort to bring people together and then build up enough trust and connection and understanding that we’re similar people, we have similar hopes and dreams, similar aspirations. Then we can learn about how our communities came to look the way they do, why some people live in better resourced parts of town than others.

AC: You mention in the book the challenges associated with getting more minority leadership due to inequitable demands on time and other resources compared to their white counterparts. How might we overcome that?

LR: I think it’s creating meetings that happen when people can attend them, evening meetings for example, providing childcare, providing food, sort of grassroots organizing 101. You make it easy for people to attend and hold meetings closer to the people who have fewer resources to travel.

AC: Could you summarize some of the historical legal precedents that you describe in the book, and how the Supreme Court has contributed to this long history of racial inequality and segregation?

RR: Well, it’s done more than contributed; it’s created it. There’s a lot of attention today on the legacy of slavery. It’s appropriate — the country was founded as a country that protected slavery. The Constitution originally had many clauses that protected slavery, but then after the Civil War, the 13th and 14th Amendments in particular, as well as the 15th Amendment, were adopted. Had those amendments been enforced, I believe that we would have a racially egalitarian society today. Beginning in the 1870s, the Supreme Court began a 150-year march to demolish the plain meaning and intent of both the 13th and 14th amendments. The 13th Amendment not only abolished slavery but provided a requirement that Congress enact laws that would eliminate what legal scholars refer to as the badges and incidents of slavery, which is any form of second-class citizenship.

In 1866, pursuant to that 13th Amendment, Congress passed a law that prohibited discrimination in the sale and rental of housing of any kind — discrimination in restrictions and differences in property acquisition, as well as all other forms of discrimination. The Supreme Court ruled it unconstitutional, even though it was pursuant to the plain meaning of those post-Civil War amendments. That was in 1866 that the law was passed. In 1968, the Supreme Court said, “Whoops, we made a mistake…. That was really a good law. It was consistent with the 13th Amendment to prohibit any form of racial discrimination in housing.” But by that time, the country had become a rigidly segregated nation in every metropolitan area. And, of course, there is a history of all the other Supreme Court decisions in between 1866 and 1968, the decisions that blessed separate but equal transportation — the separate but equal doctrine — a plain violation of the 14th Amendment.

And now in this recent term, the Supreme Court issued a decision that came out just after our book was published — but we certainly knew what was coming and wrote in “Just Action” with it in mind — that prohibited any actions that explicitly tried to remedy the racial inequality that it had created. We had one 15-year period in this country when the Supreme Court was relatively oriented toward creating racial equality — the Warren Court. It was led by Chief Justice Earl Warren, and it issued a number of decisions that enhanced racial equality. I think many liberals have been seduced by that 15-year period thinking that it’s going to come back someday, and that we can rely on the Supreme Court to save us from the apartheid system that we have in this country. It’s not going to happen. That 15-year period was unique in the 150-year period in which the Supreme Court suppressed racial equality, including its decision in the most recent term. People who are involved in racial justice campaigns — activists — have to be aware of this. They have to be less intimidated by the Supreme Court and take explicit action to ensure that we are advancing racial equality, and there are many ways that this can be done. 

AC: Could you describe the Affirmatively Furthering Fair Housing rule, and how it was applied to effect in New Orleans? 

LR: The Fair Housing Act of 1968 requires not just the prohibition of discrimination in the sale and rental of housing but that jurisdictions “affirmatively further the purposes of the act.” It was unclear for a long time what that actually meant for jurisdictions trying to adhere to that part of the law. An Obama-era rule explained how to implement the requirement to affirmatively further fair housing. It told jurisdictions who get federal funds for housing and community development, which is almost all jurisdictions, that they had to undergo a robust community planning process that involved all the stakeholders in a community.

They had to complete a comprehensive analysis looking at what the impediments are in that community to fair housing, what is keeping a community segregated, and what would need to be changed or undone to challenge that segregation. From the analysis, they had to create a set of goals and objectives for how to address those obstacles and further the fair housing and desegregation efforts in that community. Every goal had to have objectives and an agency or organization responsible for implementing them.

Under the Obama-era rule, if a jurisdiction didn’t submit a plan that was good enough, its federal funding could be in jeopardy. The Obama-era rule was rescinded by the Trump administration. There’s a new rule that the Biden administration has written. It’s not officially in place yet, but a lot of jurisdictions are starting to plan for the Affirmatively Furthering Fair Housing process that the Biden rule will reinstate. Many are doing it even before the rule is in place because it’s the right thing to do, and it helps direct them in the right way for future work. We write about that as a way for community groups — groups that are formed to advocate for the redress of segregation — to ensure that they’re involved in their jurisdiction’s planning process and that the right people and organizations and institutions are at the table. 

AC: In your book you describe some recent attempts at creating mixed-income housing and the limitations and successes of these projects. Can you expand on this?

RR: One of the terrible stereotypes that we have in this country is that there’s some kind of shared identity between “African American” and “poor.” The reality is that most African Americans are not poor; they’re middle class or working class. They have as much of a need for affordable housing as poor people do. They are also locked out of current housing markets. It is a mistake to think of mixed-income housing as one that mixes market-rate units and Section 8 units in one building with nobody in between.

One example that we describe in “Just Action” is a development in Quincy, Massachusetts. The state has a program that subsidizes for developers the creation of this missing middle housing, so that they’re not only relying on subsidies for the lowest income families and then having to rent everything else at market rate. The program that we describe is an apartment complex that reserves three-fifths of its units for middle-income housing, and then one-fifth each for market-rate and low-income housing. It’s a very successful program. 

One of the unique things that this development does is that all the units are identical architecturally. If somebody from, say, a market-rate unit leaves or can no longer afford to pay the market-rate rent but instead can only afford to pay the middle-income rent, the next middle-income unit that opens up is then rented at market rates. It preserves the balance of a healthy community throughout the project and doesn’t just try to combine the extremes. The project is racially and ethnically, as well as economically, diverse. As we said, it’s important to be aware that if you don’t have intentionality in trying to desegregate racially, as well as economically, those missing middle units are not going to be occupied by very many African Americans, and you will not redress segregation in the way it’s intended. 

AC: What are some of the obstacles that many seemingly liberal communities have presented in terms of up-zoning?

LR: There are many examples of liberal-leaning towns where people support affordable housing development and housing access in general. But when it comes to proposing multifamily development or affordable housing in their own neighborhood, they often vehemently oppose it. We call those people NIMBYs — “not in my backyard.” 

They exist all over the country and have been very effective at blocking multifamily development, up-zonings, and affordable housing. They show up at planning commission meetings and city council meetings because they mistakenly believe that they will be negatively impacted by these developments. They think that their property values will be negatively impacted. They sometimes cite that crime will go up, that traffic will get worse, that the character of their community will suffer. This is all thinly veiled racial language for what would happen if their community became less white by having multifamily or affordable housing in their communities. The evidence doesn’t show that property values suffer when these developments come into a community, but that fear still often drives the debates.

What we are suggesting is that there are just as many people who support  new development, support creating a more inclusive, diverse community. But they don’t feel as personally impacted, so they don’t have the same motivation to show up in support. We also don’t know who the people who will live in those developments will be yet because they haven’t been built yet. They can’t show up to advocate for the developments in these planning commission and city council meetings because they haven’t yet been identified. But that doesn’t mean that supporters don’t exist.

We wrote in our Substack column about a wealthy, exclusive community in California’s Silicon Valley, where median home prices are $2 million. They started organizing by doing an educational workshop around “The Color of Law” and how their community came to be segregated, all the policies that went into segregating their community and that led them to the affordable housing crisis that they’re in. Thirty percent of teachers in this community left their jobs every year because they couldn’t live anywhere near their schools, and so the school district proposed to build teacher housing to address that issue. Thiswould involve an up-zoning of a vacant lot to build 90 units of housing. Some neighbors opposed it very actively; they put a measure on the ballot that would have made the proposed development illegal and also required any future up-zoning of a single-family zoned lot to go before the voters. 

So this group that was already organized launched a campaign to block that ballot measure. They went door to door and talked to their neighbors and found a lot of support even where they didn’t expect to because people understood that this was another step in a long history of policies that kept their community looking the way it does and kept certain people out of their community.

They ended up defeating the ballot measure. The 90 units of teacher housing will be built, and they’re continuing to organize around housing issues. The support for inclusivity, for more diverse community, for more affordable housing options was there; it just had to be organized and the people had to talk to each other to build up that momentum. There’s always going to be opposition to any advances in civil rights and racial equality, but that shouldn’t stop us from pursuing those changes anyway.

RR: Leah mentioned the widespread myth that property values decline if a community is opened up racially, in particular, that white flight typically follows. In “Just Action” we describe a community in the suburbs of Chicago that decided to fight this myth. They enacted a property value insurance program to stabilize the community and prevent white flight. People could subscribe to this program, which would insure them against loss in their property values. The program lasted for 20 years or so and never had to pay out a single claim. The community became completely integrated and has remained stable for decades now. But they demonstrated that this myth of loss of property values is nonsense. 

AC: That’s really interesting. Gentrification is an ongoing challenge almost anytime new development comes in. What are some of the strategies that can be implemented to prevent the displacement of residents who are already there?

LR: We want to improve resources and opportunity in segregated African American communities where the concentration of poverty is the direct result of government-sponsored segregation. But we also understand that when resources and investments improve, often people with higher incomes want to move in, prices go up, and gentrification occurs. Long-time residents are displaced. We don’t think that the answer to that is to not improve those communities to prevent gentrification entirely but instead to increase resources in those communities and couple those strategies with anti-displacement strategies that prevent some of the displacement that will occur.

Some of those anti-displacement strategies include protections for renters against rapidly increasing rents. Another is just cause eviction ordinances to make it illegal for landlords to evict tenants, except for certain just causes, like not paying rent or causing property damage. Often when a community gentrifies, landlords will use unfounded reasons to evict tenants so that they can bring higher paying tenants in. 

Inclusionary zoning policies are a way of ensuring that as new development occurs in a gentrifying neighborhood, some affordable housing is created in that development.They require that when new housing is built in an area, a certain percentage of the units have to be reserved as affordable to lower- and moderate-income households. And then, in order to prevent displacement, preferences should be added onto those new affordable units to ensure that the people who are at risk of displacement from the community have access to those units. A right to counsel program is another strategy for gentrifying communities. It ensures that tenants facing eviction have a right to a free attorney so that they have representation in that process and to help prevent an eviction going on their record. 

Community land trusts are another great example. These are often nonprofit organizations. They acquire land and then sell the homes on that land to lower- and moderate-income households at affordable prices because they retain ownership of the land underneath the house. The homeowner owns the home and then ground leases the land from the land trust, but they get it at an affordable price. The homeowners who own a land trust home own it like any other homeowner, but when they want to resell the home, they have to adhere to the maximum resale price that the land trust establishes. That ensures that the home seller earns some equity in the sale and that the new home buyer gets an affordable price as well. That’s the way it creates permanently affordable home ownership opportunities in these communities where housing prices are rising.

AC: What types of communities are the most viable candidates for land trusts? I remember reading that in some areas property values have already increased beyond the point where a land trust is an option.

LR: Land trusts often operate in communities with lower property values or where they’re rising — so gentrifying communities. That’s because that’s where the land trust can acquire less expensive land or they can get it donated. Often, they get vacant land donated from a local government, and the local governments in these communities may be more likely to donate to a land trust than in, say, exclusive, expensive suburban communities. But if there were groups in those suburban communities organizing for the redress of segregation and focusing on land trusts, they could advocate that their suburban local governments donate vacant land to a land trust to create permanently affordable home ownership opportunities in those communities for households who’ve historically been excluded from those neighborhoods. 

There’s not a lack of opportunity for this either; suburban local governments also are sitting on a lot of vacant land. In many suburban communities, public school enrollment is declining, so there are vacant school sites that a local government could donate — even a portion of those — to a land trust to build affordable home ownership opportunities. But these local governments likely won’t do that without residents there advocating for that kind of action.

RR: I just want say one more thing about gentrification in answer to your question. In “Just Action,” we have two photographs of community groups demonstrating in front of banks. In both cases, the banks were issuing mortgages to landlords where the projected income stream that the mortgages were based on could not be achieved unless they raised rents and evicted existing tenants.

The community groups demonstrated, and they got agreements from both banks that they would cease lending to landlords whose projected income stream was based on evicting existing tenants. In neither case did the groups organize powerfully enough to actually enforce those agreements, but that’s a question of political mobilization and gaining greater strength. The reason I love those two photographs is that one was in California, a demonstration in front of First Republic Bank, and the other was in New York, a demonstration in front of Signature Bank. Now, obviously, when we wrote this book, we had no idea that these would be the two poster children of bank failures in 2022. But this was a practice in both banks. They had issued many loans to developers who were planning to evict tenants and gentrify, and a community group could press their local banks not to issue such loans.

AC: Are there opportunities you have found that would be particularly useful for architects to apply their skills to, either on a civic level or professionally?

RR: I want to emphasize that our book is aimed at citizens, and architects are citizens. The book is primarily aimed at what people can do in their own local communities, but there is something that architects can do. We mentioned before that up-zoning is a first step and that it is possible to up-zone without changing the character of the community by intelligent architecture. There’s a book called “Missing Middle Housing” that we refer to that was written by an architect, Daniel Parolek. By “missing middle,” he means not the social class missing middle that I was talking about before, but missing middle in terms of architectural style.

The book shows how you could take a single-family zoned community and create multiunit housing that blends in perfectly with the rest of the community. Of course, this exists all over the country. There are many buildings that you can’t tell from the outside if they are a single-family home or a multiunit home unless you look at the number of mailboxes. That’s something that architects can be aware of. There are plenty of opportunities to design homes when you up-zone that don’t change the character of the community, but that do provide opportunities for middle-class families to live in places that they’re currently excluded from. It won’t necessarily racially desegregate the community, but it’s a first step.

Anastasia Calhoun, Assoc. AIA, NOMA, is the editor of Texas Architect.

Adam Paul Susaneck is an author and architect who received his M. Arch from Columbia University GSAPP and is currently pursuing his Ph.D. at the Delft Institute of Technology in the Netherlands.